Here’s what the President said last night in the State of the Union about earmarks:

The people’s trust in their government is undermined by congressional earmarks — special interest projects that are often snuck in at the last minute, without discussion or debate. Last year, I asked you to voluntarily cut the number and cost of earmarks in half. I also asked you to stop slipping earmarks into committee reports that never even come to a vote. Unfortunately, neither goal was met. So this time, if you send me an appropriations bill that does not cut the number and cost of earmarks in half, I’ll send it back to you with my veto. (Applause.)

And tomorrow, I will issue an executive order that directs federal agencies to ignore any future earmark that is not voted on by Congress. If these items are truly worth funding, Congress should debate them in the open and hold a public vote. (Applause.)

Here is the Executive Order that the President signed this afternoon.

If you’re interested in perusing earmarks, go to OMB’s excellent earmark website.

You can search bills from 2005. OMB is updating the database for more recent laws.

I suggest you try searching for “museum” in the “Search Earmarks full text” box. I got 273 results.

Here are results of a few other searches:

“genome” – $1.2 M for trout genome mapping at West Virginia University in Morgantown, WV and the Agricultural Research Service in Leetown, WV (in report language)

“dinosaur – $99,000 for environmental improvements for preservation of the dinosaur collection in Pittsburgh, PA. (in the law)

“hockey – $129,000 for the American Hearing Impaired Hockey Association in Chicago, IL (in report language)

“paint” – $1.5 M for a Virtual Reality Spray Paint Simulator System and Training Program at Fakespace Systems in Marshalltown, IA (in report language)

In addition, the huge “omnibus” appropriations bill the President signed at the end of last year contained these two earmarks in report language:

  • $846,000 for a Father’s Day Rally Committee
  • and $178,600 for New York City’s American Ballet Theater

There are three components to our new policy on earmarks:

  1. a veto threat if an appropriations bill does not cut the number and cost of earmarks in half from 2008 levels;
  2. direction to agencies that they should ignore earmarks in report language in future bills; and
  3. direction to agencies that any “phonemarks” be ignored unless they are put in writing to the Agency. The Agency must then publish the written request on the internet within 30 days. A “phonemark” is when a Member of Congress or Congressional staffer calls an agency and presses for funds to be spent on a particular project, generally within that Member’s district or State.

Veto threat

Using our definition of an earmark, last year’s appropriations bills and the accompanying committee reports contained a total of 11,737 earmarks, which combined spent a total of $16.872 B of taxpayer money. This is the baseline against which we will measure the President’s threat to veto any bill which does not cut both the number and $ amount of earmarks at least in half. (Technical note: The actual comparison with last year will be done on a bill-by-bill basis.)

Last year the President called on the Congress to meet this threshold. This year he’s backing that call up with a veto threat.

Executive action

The new executive order defines an earmark as spending provided by Congress where the purported Congressional direction:

  1. circumvents otherwise applicable “merit-based or competitive allocation processes;”
  2. or “specifies the location of the recipient;”
  3. or “otherwise curtails the ability of the executive branch to manage its statutory and constitutional responsibilities pertaining to the funds allocation process.” (I’ll skip the explanation of this.)

Here’s some general appropriations language in a law:

For necessary expenses of activities authorized by law for the National Oceanic and Atmospheric Administration – $2,856,277,000.

The bill includes a further subdivision of $709 million for the National Marine Fisheries Service, a subdivision of NOAA. So far, so good.

The report language, however, includes the following text:

These funds are distributed as follows:

  • Oyster Hatchery Economic Pilot Program, Morgan State University, MD  $470,000
  • Papahanaumokuakea Marine National Monument Fishery Assistance, HI $6,697,500
  • Southern New England Cooperative Research Institute, RI $1,339,500

About 80% of earmarks are of this form  they’re in report language, which is not actually part of the bill signed into law by the President. These earmarks are instead incorporated into the “report” that accompanies the bill, more formally known as the “Statement of Managers.” The President focused a spotlight on report language earmarks, because they are never subject to a vote in Congress. If a Member had wanted to amend this bill to strike the $470K of spending for the Morgan State Oyster Hatchery Pilot program, he could not have done so. There’s nothing to amend, since this earmark wasn’t actually in the bill.

But the earmark has a practical effect, even though it’s not part of the law. Why? Imagine you’re the person running the National Marine Fisheries Service. You are not legally required to spend this $470K as the report says you should. But if you don’t, next year when you’re coming to Congress to get your $709M (plus inflation), the Member or staffer whose earmark you ignored might cut your funding. And since report language is generally written by those staffers who actually determine what your top-line number is next year, you have a tremendous incentive to do what they “recommend” in the report.

The President’s executive order now instructs you to ignore those report language earmarks. You have been directed to give money to the Oyster Hatchery Pilot Program only if it merits that funding based on an objective, transparent, and merit-based funding process.

I’ll extract some key language from the Executive Order.

(T)he head of each agency shall ensure that agency decisions to expend funds are based on the text of laws, and in particular, are not based on language in any report of a committee of Congress or any other non-statutory statement or indication of views of the Congress, or a House, committee, Member, officer, or staff thereof.

In other words, follow the words of the law, not what some other person or document claims is the intent of the law.

(T)he head of each agency shall ensure that agency decisions to expend funds for any earmark are based on authorized, transparent, statutory criteria and merit-based decision-making.

Some earmarked projects will still get funding because they qualify on the merits. The process is important here – they will be getting the funds because they are projects that succeed in a merit-based competition based on transparent (public) criteria, not because they have a powerful supporter.

(T)he head of each agency shall “ensure that no oral or written communications concerning earmarks shall supersede statutory criteria, competitive awards, or merit-based decision-making.

An agency shall not consider the views of a house, committee, Member, officer, or staff of Congress to carry out an earmark unless such views are in writing

A “phonemark” is when a Member of Congress or Congressional staffer calls an agency and presses for funds to be spent on a particular project, generally within that Member’s district or State. No more phonemarking. You’ve got to put it in writing.

All written communications from the Congress recommending that funds be expended on an earmark shall be made publicly available on the Internet by the receiving agency, not later than 30 days after receipt of such communication

… and then your letter will be made public. Transparency is key.

Note that the Executive Order has no sunset date – it is now permanent policy. A future President could modify it or repeal it, but they would then be weakening President Bush’s action to limit earmarks.